or at least, of a want of feeling, gives a facility to the execution of criminal law, and reconciles to the sentiments of the people, the necessary punishment of offenders. The punishment of the guilty, if, from an oppressive partiality in the prosecution, or an undue rigor in the execution, it meets not the acquiescence of the people, can have no salutary effect in society.

It may be made a question, how far the person injured ought to be admitted to prosecute for the end of punishing. I apprehend this will depend much on the state of manners, and the principles of the government. In a government supported in a great measure by force, and in a state of manners in which the mind is highly inflamed by every, the least private injury, and the passion of revenge is satisfied with nothing short of personal retaliation, it may be in a degree necessary to permit the person injured to prosecute his revenge at law, to prevent the fatal consequences of private malice. To restrain the spirit of personal revenge, and subject it to general laws, is a great point in the progress of society. Still, as prosecutions, for the end of punishment by the party injured, have a direct tendency to perpetuate a resentment of injuries, and to make the law instrumental in the exercise of personal enmity, the practice, by no means, agrees with a general refinement of manners* or the humane principles of a popular government. The person injured ought to rest satisfied with a full security in the right of reparation. The right of punishment ought to be exercised solely for the prevention of crimes, and to be permitted to those only, who are selected by law for that purpose, and who are supposed to be capable of candor and moderation in their proceedings. The practice of admitting common informers, who are to receive a share of the penalty as a reward for prosecuting, is still less to be justified. The practice can never be necessary in any state of manners, nor is it justified by the plea

* By refinement of manners is not meant the ettiquette of politeness merely, which may consist with many traits of barbarous manners. It consists with the modern point of honor, the practice of duelling to revenge personal affronts, and insults often imaginary. We ought rather to place a refinement of manners in the sentiments of humanity, and a general spirit of accommodation.

of preventing a greater evil, by the admission of a less. often serves the purposes of private malice, always fosters in the prosecutors a spirit of plunder, a disposition to prey on others, and serves to excite and disseminate jealousies and private animosities among the citizens. It is calculated for those governments only, in which the rulers foresee the punishment of their own crimes in the unanimity of the people. Can we, then, hesitate to pronounce that in the United States of America, the institution of criminal prosecutions in the name and under the direction of private persons, is opposed to the present state of manners, and the principles of their government? and that the intervention of a grand jury ought to be secured in every constitution, as the sacred right of the people, at least, in all prosecutions for capital, and all other high crimes and misdemeanors?

The observations made on the institution of grand juries, who, by their intervention between the ministers of the law, and the people, and their deliberate and solemn approbation of prosecutions, remove the odium of severity and serve to reconcile the execution of criminal law to the sentiments of the people, apply with more force to petit juries, in proportion as the condemnation is of more consequence than the accusation. This is not all. The institution is the best which has been devised, and probably, that can be devised by human wisdom, for obtaining substantial justice in trials, both criminal and civil. The particular province of the jury, is to weigh evidence and to decide upon facts. It is true, that in all questions to be decided by a jury, justice results from a combination of law and facts; and it is also true, that in a complicated state of society the law may become intricate and its application not a little difficult. This can happen in questions of a civil nature only. No crimes are to be made out by a construction of dubious facts, or a doubtful application of law. It is the province of the judges to explain and apply the law, and to decide upon it when submitted to them by the jury on a statement of facts. To such statement the jury are fully competent.

Will it be thought strange to assert, that professional and systematic knowledge is less competent to judge of the proof of facts, than plain sense conversant only with the common business of life, and the common characters of men? And yet, to

the mortification of the great and the learned, experience has established this to be generally true. It is not therefore without reason, that men acquiesce more readily in the verdict of a jury, than in the opinion of the judges, on matters of fact. There is also another consideration of considerable weight. The judges are often viewed as a distinct class, placed above the common interests and common feelings of the citizens. Hence arises the idea, however ill founded, of a distinct interest and a general bias, upon certain occasions. Juries are, or ought to be, taken from the substantial class of citizens; and effectual provision should be made to guard against every inlet to corruption, and the admission of those to set on the trial who may be subject to prejudices or interested views, in their decisions. With these precautions, the justice of their decisions will be attributed to the excellence of the administration, and if they should prove unjust, it will be attributed to human frailty; it will be viewed as a temporary inconvenience, for which the laws are not answerable, where unjust decisions made by the judges are considered as dictated by standing, official prejudices, by interest or secret corruption, which, however dangerous, are not easily removed. From this brief view of the subject it appears, that this institution, in which is included both the grand and petit juries, is intimately connected with the principles of a free government. It sufficiently obviates any danger, which might be supposed to arise from the independence of the judges, and secures the administration of justice, in the spirit of impartiality and moderation, the true spirit of a free government.

*There is a provision for selecting jurors in some of these states, well worthy of imitation. The law directs that at the annual town meetings, the principal town officers and the civil authority of the town shall select and nominate a suitable number of persons properly qualified to serve as grand and petit jurors, for the year ensuing. When approved by the meeting the names of the persons so selected, are to be deposited in separate boxes in the custody of the town clerk. When a venire is issued for jurymen, the court directs from what towns they shall be taken, and the number from each; and thereupon the summoning officers attend on the town clerk, who is directed to draw by lot from the several boxes, in the presence of the officer, the number required, and the officer is directed to summon the persons whose names are so drawn, and no others. The jurors thus selected, are always respectable, and in very few instances do the parties in court find cause of challenge.

BOOK VI.

OF LAWS.

CHAPTER I.

General idea of Law-Of the Law of Nature.

The principal object in this book, will be to take a brief view of the principles, and the obligation of the law of nature, of the law of nations, and the municipal law.

Judge Blackstone tells us, that "law in its most comprehensive sense, signifies a rule of action, and is applied indiscriminately to all action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and nations."* When we speak of the laws of nature, with respect to the universe, so far as it comes under our knowledge, we mean those apparent rules, agreeable to which, all its motions and operations, in all its parts, are produced and directed in an unceasing series, regular, orderly, and uniform. The author afterwards observes, that "laws in their more confined sense, denote the rules, not of action in general, but of human action or conduct." Upon which, Mr. Christian very justly remarks, that "this perhaps is the only sense, in which the word law, can be strictly used; for in all cases where it is not applied to human conduct, it may be considered as a metaphor;

*1 Comm. p. 38.

and in every instance a more appropriate term may be found. When it is used to express the operations of the Deity, or Creator, it comprehends ideas very different from those, which are included in its signification, when it is applied to man, or his other creatures. The volitions of the Almighty are his laws. He had only to will, "Let there be light, and there was light." When we apply the word law, to motion, matter, or the works of nature or of art, we shall find in every case, that with equal, or greater propriety, we might have used the words, quality, property, or peculiarity."

Yet from a degree of analogy apprehended, it is, unless limited by the nature of the subject, or the manner of expression, generally understood in its most comprehensive sense. In speaking of the laws of nature generally, we include as well the laws which are supposed to govern action, attending matter animate, or inanimate, and which are sometimes called physical laws, as those laws which govern the actions and conduct of man, as a moral intelligence, and which are the subject of our present enquiry. Between the former and the latter there is, however, a very important distinction. Whether we suppose with some, that the Creator, in the formation of the universe, impressed on matter certain principles, from which it cannot depart, without ceasing to exist; or with others, that according to a predetermined plan, the movements of the whole system, and every operation in all its parts, even the most minute, are effected by an immediate and constant exertion of the Divine agency, or effective will of the Deity; yet, here the law, as it respects the subjects, is a law, not of obligation, but necessity. The subjects are mere passive means or instruments, without will, intention, or power of resistance. No moral consequences are attached to the action. But the latter, the law of intelligent beings, the law of human conduct, is a law of obligation, not of necessity, as in the case of mere physical laws. Man has, indeed, a body, wonderfully organized, and endued with animal life. As an animal being, he is subject to physical laws; but he is furnished with intelligence, with a faculty by which he attains the perception of moral relations and their result in duty, in a view to human actions. In considering certain relations, in which he finds himself, he